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By: Bill Pilchak – 12/08/15

In the wake of the Paris, Colorado Springs and San Bernadino shootings, Detroit Police Chief James Craig and Maricopa County (Phoenix) Sheriff Joe Arpaio called upon licensed gun owners to carry concealed weapons and use them against terrorists. Craig said on Fox News that one trained and armed citizen might have made a difference. The New York Times has reported a recent spike in gun sales after the incidents. More background checks to buy guns were conducted on Black Friday this year than any other day on record.

Few issues are as divisive. Because this country was formed by an armed uprising against a tyrannical government and the Constitution guarantees the right to own firearms, there now are an estimated 310 Million of them in the U.S. In the same way that 5 million illegal immigrants cannot be deported, 300 million guns cannot be removed from society. Robbers or terrorists will always find a way to get a gun. Someone intent on robbing or killing (both life felonies) won’t dither about a weapons violation (misdemeanors or 4 or 5 year felonies) along the way. Those of us with law enforcement experience know that violence is often random and occurs in even the most upscale communities. Michigan passed legislation years ago to liberalize a law-abiding person’s ability to obtain a concealed pistol license (CPL) in the belief that they should have an even chance against the bad guys. Now, more people around you are armed than you know.

Others fear guns, whether in the possession of a criminal, a terrorist or a scout leader and would prefer that only the government have weapons. Implicit in their position is the belief that the government will protect them if and when they are in danger. As a long-ago assistant prosecutor, I periodically met with people who had been credibly threatened with murder. Each one was told that we would prosecute the assailant if the threat were carried out, but that there was no mechanism for protecting Jane Doe. (Politicians and celebrities, yes; Jane Doe, no.) The law now provides for personal protection orders (PPOs), which as far as I know are not printed on bullet-proof paper. Personally, I would prefer to have a gun than a PPO if someone was out to get me.

Still, having presented many Employee Violence seminars after the post office shootings in the 1990’s, I understand the concern that one’s safety at work depends on a coworker’s ability to control his actions and emotions. I also understand that there is no adequate legal or societal mechanism to deal with mentally ill individuals unable to control impulses. Employers adopted no weapons policies to help prevent violence, in part by drawing a line that, if crossed, illustrated a possible loss of control to be dealt with. The number of workplace homicides has steadily declined from 1068 per year in 1993 to 475 in 2012 and 322 and 307 (shootings only) in 2013 and 2014, per the latest OSHA statistics. So, the question presented by Chief Craig’s and Sheriff Arpaio’s comments is: Are targets of traditional workplace violence (usually owners, supervisors) more secure if weapons are prohibited and only a fanatic or disgruntled employee may be armed ? Or has the threat of random mass shootings (targeting anyone in sight) become so great that the workforce is safer if peppered with armed employees? Obviously, there is no easy answer to that question, but the liability risk associated with allowing armed employees should be obvious. Any errant shot that injures a non-employee (customer, visitor, vendor) will result in a lawsuit and an injury to an employee will result in a workers compensation claim, even if intended for an armed assailant.

The issue is complicated by legal constraints on employers with respect to weapons and permits which may be asserted by employees who wish to carry weapons. The legislatures of twenty states have passed “Bring Your Gun to Work” laws that restrict employers’ ability to prohibit guns from being stored in employees’ private vehicles when parked on the employers’ premises. (Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.)

Michigan imposes constraints which do not reach that far. MCL 28.425(n) prohibits employers from prohibiting employees from applying for concealed pistol permits or carrying concealed weapons off duty. However, the statute “does not prohibit an employer from prohibiting an employee from carrying a concealed pistol in the course of…employment with that employer.” So, the law does not trump an employer’s right to ban weapons in the workplace or during work activities. The question arises whether the employer can prohibit employees from bringing weapons in their vehicles onto the premises, which is arguably not in the course of employment. Since workers compensation cases have ruled that walking to and from the parking lot is “in the course of work,” Pilchak & Cohen has always felt an employer could justify a “no weapons on our premises” rule, although gun advocates may argue otherwise. Still, employers must recognize that if the employee can park “off premises,” such as on the street next to the facility, the employer may have no lawful way to prohibit a disgruntled employee from having weapons close at hand at work.

Under the criminal statute, MCL 750.227, a business owner may carry a concealed pistol in his place of business, even if he or she does not have a CPL. Should a business owner (or manager in charge of a facility with a CPL) have a weapon at work? If so, what are the implications? An errant gunshot by management will have the liability implications stated above. Further, if the weapon is accessible, found and used anywhere by anyone, the business could be sued for negligence. Thus employees in general cannot practically be advised that if shooting erupts, a weapon is available at a certain location, such as the boss’ office. Placing the weapon in a safe is an alternative. Trained management or former law enforcement employees might even be given the (hopefully digital) combination. However, a pistol in a safe is not helpful when the gunman is at the business owner’s office door. That prospect argues in favor of carrying the weapon throughout the work day. However, the boss carrying a weapon either violates or denigrates the usually-present no weapons policy. And a no-weapons policy is the only thing preventing the increasingly armed population from bringing their weapons to work.

Most of the time, Pilchak & Cohen has all the answers on employment issues. However, add one insane factor like unforeseeable, random mass shootings by fanatics, and like the rest of the world we have to feel our way through the madness.